Professional Documents
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The City of Marina (City or Marina) respectfully submits these Comments on the
Joint Statement of Issues filed in Application (A.) 12-04-019 on June 30, 2017, and on a
proposed schedule for further evidentiary hearings. These Comments are filed and served
pursuant to the Commissions Rules of Practice and Procedure, the Administrative Law Judges
(ALJs) Ruling Requesting Parties to Identify Issues for Further Evidentiary Hearings issued on
June 9, 2017 (June 9 ALJs Ruling), and the ALJs Email Ruling issued on June 14, 2017,
granting an extension of time to file Comments on the Statement of Issues and schedule to today,
I.
BACKGROUND
The June 9 ALJs Ruling calls for parties to file a Statement of Issues related to the need
for further evidentiary hearings on identified topics in the Application. Parties were also to
Water Company (CalAm) with the parties and provided input to and joined in the submission
of the Joint Statement of Issues filed on June 30. The Joint Statement of Issues includes both
1
June 9 ALJs Ruling, at p. 3.
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procedural suggestions made or agreed to by Marina 2 and, in Exhibit A, recites and includes the
issues that Marina believes are appropriate for the further evidentiary hearings. 3
However, as the Joint Statement of Issues makes clear, the submission of the Joint
Statement did not represent an agreement by each party to issues raised by another party.
Instead, each party, including Marina, reserved the right to identify their respective objections,
or agreements, to the issues identified in Exhibit A and to address schedule issues in their
Comments. 4
To that end, Marina further describes the merits of the issues that it believes should be
included in the further evidentiary hearings, especially because it anticipates that some parties
may object to inclusion of a few issues. Marina does not object to any of the evidentiary hearing
issues raised by other parties indeed, it notes that many of those issues are the same as, or
overlap with, issues raised by Marina. In addition, Marina proposes a specific procedural
schedule approach to ensure the full and fair consideration of these issues.
II.
MERITS OF MARINAS ISSUES
Marina has proposed that nine issues be the subject of the further evidentiary hearings
in this proceeding. 5 The Joint Statement of Issues does include Marinas brief explanation of
why each issue is relevant for inclusion as a non-CEQA (California Environmental Quality Act)
disputed issue of material fact in these further hearings. However, Marina believes that the
Commission would benefit from a further description of why each issue is appropriate and
2
Joint Statement of Issues, at p. 2.
3
Joint Statement of Issues, Exhibit A, at pp. 4-6.
4
Id., at p. 2.
5
Id., Exhibit A, at pp. 4-6.
2
1. Project Water Demand
Based on a review of the Joint Statement of Issues, it appears that nearly all parties agree
that an evidentiary hearing on the current water demand for the Monterey Peninsula Water
Supply Project (Project) is necessary. As the Project has evolved over time and as more water
supply/demand information has become available, it is clear that the early water projections are
now outdated, and it is essential that a current and objective assessment of the true water demand
for the Project be examined in an evidentiary hearing. The latest information presented in the
Draft EIR/EIS reflects that the actual water needs for this Project may have been initially
overestimated by as much as 7,000 acre feet per year (afy). This is an important threshold
issue that must be addressed in the further evidentiary hearings and will require an
examination of the justification for the Project, determination of the Project sizing, and
identification of Project alternatives, including those that do not involve a desalination plant.
Until now, every alternative evaluated in detail for the Project assumed that a 9.6 million
gallon per day (mgd) or a 6.4 mgd (if the Pure Water Monterey project supplied the remainder
of the asserted 9.6 mgd need) desalination plant needed to be built. Since it now appears from
the Draft EIR/EIS that the demand on which this sizing is based was greatly overestimated, a full
range of alternatives to the Project on a smaller scale needs to be explored. This issue is closely
tied to the Project water demand evidentiary hearing issues described above.
It is undisputed that the Project would extract large amounts of groundwater from the
Salinas Valley Groundwater Basin (Basin). At the same time, it appears that CalAm does not
have any current right to extract groundwater because it is not an overlying landowner and does
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not have any other existing water extraction or export rights. Although this issue was mentioned
in the Draft EIR/EIS, the authors of that document stated that the nature and extent of
groundwater rights was not an appropriate CEQA topic and that it was only being briefly
mentioned because it related to Project feasibility. Thus, according to the Draft EIR/EIS, this is
a non-CEQA issue, and it should, therefore, be addressed in the further evidentiary hearings.
If, in fact, CalAm does not have a confirmed and fully viable path forward to obtain the
rights to extract and export groundwater from the Basin in the quantity it seeks, this Project as
currently designed cannot proceed. CalAm apparently concedes that there is no permit process it
can pursue that would provide it with the necessary groundwater rights, so it is critical that the
Although the ultimate conclusion as to whether water rights will exist is a legal issue (just
as the adequacy of an EIR is a legal issue), the resolution of that issue depends on a series of
material and disputed factual questions that should be addressed in an evidentiary hearing. Some
of these questions are procedural: (a) Exactly what process does CalAm intend to follow to
obtain such water rights? (b) When is it planning to proceed? (c) How long will the process take
and how viable is it? (d) What delays can be anticipated? Other questions are technical: (a)
Exactly how much groundwater does CalAm plan to extract from the Basin? (b) How much
groundwater is available? (c) Could this proposed extraction cause injury to legal users of the
basin through depletion of groundwater, interference with water quality, injury to water storage,
or other damage?
Since the sole purpose of the Project is to source water for CalAms customers, these
factual questions go to the heart of the Projects viability and must be addressed in an evidentiary
hearing. It is also Marinas position that CalAm bears the burden of proof on all of these factual
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issues, and any schedule adopted for the further evidentiary hearings should reflect that fact in
Both an existing State law (the Monterey County Water Resources Agency Act) and
Monterey County Water Resources Agency Ordinance No. 3709 directly prohibit the extraction
of Basin groundwater for export to users outside of the Basin. As with the groundwater rights
issue, the authors of the Draft EIR/EIS stated that these prohibitions were not CEQA issues and
were only being briefly mentioned because they were Project feasibility issues. These issues
should be addressed in an evidentiary hearing because there are important underlying factual
issues regarding the Project facts and impacts that would necessarily inform the application of
5. Impact of SGMA
(SGMA), which is the first law in Californias history to comprehensively regulate the
extraction of groundwater. One of the first implementation steps was for the Department of
Water Resources to classify each State groundwater basin to prioritize those basins which were
in greatest need of immediate SGMA regulation. The Salinas Valley Groundwater Basin was
one of only 21 basins in the State to receive the critically overdrafted designation, which
identified the basins in the worst shape and which classified it for expedited management under
SGMA.
The water analyses relating to the Project were performed before the California
Legislature adopted SGMA and, for that reason, did not take it into account. The Draft EIR/EIS
made a passing reference to SGMA, but stated without any supporting analysis that it would
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have no impact on the Projects water supply. In fact, however, the law will likely have a
dramatic adverse impact on the Projects feasibility, which has not been analyzed by the
Commission.
According to the Draft EIR/EIS, this is a non-CEQA issue for the reasons stated above.
It is also a fact-based issue that involves the following factual inquiries: (a) How much Basin
groundwater is available for new large extraction sources or for export? (b) What are the
groundwater management plans and associated time frames of the Groundwater Sustainability
Agency in charge of this portion of the Basin? (c) Will the implementation of SGMA likely
delay, limit, or prohibit the Projects proposed extraction of groundwater from the Basin? These
The Projects extraction and use of Basin groundwater are among the most significant
and most controversial aspects of the Project. Under California law, any water under land is
considered groundwater and, pursuant to State Water Resources Control Board Resolution No.
88-63, is presumptively considered to be suitable for municipal and domestic water supply. In
the last two years, CalAm has modified its Project in several ways, including by moving its
proposed slant wells landward, which results in capturing a much greater percentage of
groundwater.
During roughly the same period of time, a series of scientific studies have been
conducted regarding this Basin, with the results of another study by Stanford Professor
Rosemary Knight expected in the next few months. These and other research results and expert
analyses provide important new evidence relating to the location, interaction, performance, and
6
These twin developments recent modifications to the Project and new scientific/expert
information directly applicable to the groundwater questions mean that the prior Commission
analyses of the amount of groundwater that would be extracted from the Basin is outdated and
not based on the best available scientific data. It is critical that the Commission analyze these
new developments in an evidentiary hearing and make a specific factual determination regarding
the amount of groundwater that the Project would extract. This issue is also an essential factual
One of Californias bedrock legal principles is that a new groundwater extraction right of
the type sought by CalAm cannot be established if it may cause injury to current and future
Basin groundwater users through groundwater depletion, seawater intrusion impacts, water
storage interference, or other similar types of impacts. This is one of the most important factual
Since this factual issue is essential to determining Project viability and will not be
examined by any other public agency because there is no permitting process available to obtain
Given the modified Project location and increased groundwater extractions, along with the new
research and information available referenced above, there is significant new information
The slant well technology proposed for the Project is new, has no track record, and is
reportedly not currently used in any commercial desalination plant in the world. These facts
were not acknowledged, analyzed, or used as a basis for selecting among desalination plant
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intake alternatives in any study associated with the Draft EIR/EIS. In contrast, these factors have
played an important role in the evaluation of alternative intake technologies for other recent
proposed desalination plants along the California coast. Given the important role that this
technology has with regard to groundwater extraction and Project viability, it is important that an
disproportionate, and unfair share of the physical impacts of this Project without any Project
benefit. The most obvious impacts are the anticipated adverse water supply and water quality
impacts to its valuable groundwater basin (on which it is currently 100% dependent), which in
turn will likely translate into severe financial impacts because much more expensive replacement
water (if even available) will need to be found as it is impaired. However, the Project will also
cause a variety of other severe coastal ecosystem, construction, noise, and other impacts.
In fact, the siting and operation of the Project in Marina appears to be a classic
environmental justice situation which to date has been completely unexamined. Indeed, it is not
even acknowledged, much less analyzed, in the Draft EIR/EIS. It is incumbent upon the
Commission to examine the Projects impacts on the community values, particularly in Marina.
III.
PROPOSED PROCEDURAL APPROACH AND SCHEDULE
The June 9 ALJs Ruling also asks parties to provide a proposed schedule (e.g., for
service of testimony, rebuttal testimony, hearing) and anything else the party believes the
Commission needs to make an informed decision. 6 Marina agreed with and supported the
following statements in the Joint Statement of Issues: First, that the adopted schedule should be
6
June 9 ALJs Ruling, at p. 2.
8
one that balance[s] competing interests and ensuring the sufficiency of the Commissions
record, permitting adequate time to do so, inclusive of any settlement discussions. 7 Second,
that a prehearing or status conference should be held (a) to develop a procedural schedule
consistent with the issues identified for the further evidentiary hearings, and (2) to provide an
update by the Commission on the current timing of the California Environmental Quality Act
(CEQA) process. 8
Marina further believes that a schedule should be adopted for which the first step would be
a ruling on the issues to be included within the further evidentiary hearings, including the
identification of those issues on which CalAm has the burden of proof. Additionally, it is
Marinas position that CalAm should be required to submit its Opening Testimony prior to
Intervenor Opening Testimony and that a sufficient period should be allowed for discovery to be
Marina, therefore, proposes the following schedule that includes general time guidelines.
A final schedule, however, should be developed at the Prehearing Conference, coincident with
and informed by an update by the Commission on its CEQA review, that should be held after the
7
Joint Statement of Issues, at p. 2.
8
Id., at p. 2.
9
ALJs Ruling on Issues to be Included in 2 Weeks After July 11 Comments
Further Evidentiary Hearings
Prehearing Conference (PHC) (i.e., 2 Weeks After Ruling
Update on Commissions CEQA review)
III.
CONCLUSION
Marina respectfully requests that the Commission include its nine issues in the further
evidentiary hearings for the reasons detailed above. Marina also believes that its proposed
Respectfully submitted,
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